Note: The information provided herein is of general nature, and should not be construed as legal advice.

Temporary Employment Authorization

by: Sergio R. Karas, Canadian Lawyer (karas@karas.ca) Persons who are neither Canadian citizens nor permanent residents of Canada, in most circumstances, must obtain written authorization in order to be legally entitled to work in Canada. There are certain exemptions that alert counsel can take advantage of on behalf of a client. The Immigration Regulations provide that Employment Authorizations may not be issued if they adversely affect employment opportunities for Canadian citizens or permanent residents. In order to make this determination, an opinion from Human Resources Development Canada (HRDC) must be obtained, to show that no such adverse effect will occur. Generally, this process, which is know as a "job offer validation," requires the prospective employer to demonstrate that all reasonable efforts have been made to recruit or promote Canadian citizens or permanent residents, and that the foreign worker is sought only as a last resort. This process is cumbersome and not always successful, besides being time consuming and expensive for the employer. Normally, employers are forced to advertise a position in national and trade Journals for several weeks, to interview candidates and to demonstrate that none of the people who come forward are suitable for the position. Normally, the process of obtaining an Employment Authorization involves two steps. The employer must first apply for and receive a "confirmation of offer of employment" from HRDC. After the confirmation is approved the foreign worker is able to apply for an Employment Authorization from the immigration authorities or visa officer abroad. There are, however, persons who are exempt from obtaining Employment Authorizations. They include: · Diplomats and Officials accredited to Canada · Clergy and related workers · Performing Artists travelling in groups of over 15 persons · Buyers and Sellers · Intra-Company transferees · Emergency Service personnel · Athletes · Guest Speakers · Expert witnesses · Personal servants · Trainees Other persons, although requiring an Employment Authorization, need not obtain a "job validation." The Immigration Regulations list approximately forty "validation exempt codes," which correspond to certain types of individuals or occupations, and include: persons in Canada in various legal proceedings who could not subsist without taking employment; persons entering Canada under international agreements; foreign students in financial need; individuals in research, educational or training programs approved by the Minister of Citizenship and Immigration; certain persons employed without remuneration by a Canadian religious organization or by a Canadian charitable organization; persons affected by war or natural disaster or coming from a designated country. The Immigration Regulations also provide for the admission of temporary workers whose employment will create or maintain significant benefits or opportunities for Canadian citizens or permanent residents. These persons include: Self-employed persons Persons engaged in after sales service Intra-Company transferees Persons whose employment will create significant benefit to Canada Persons whose countries of origin accord reciprocal employment opportunities for Canadians International student and young worker programs The North American Free Trade Agreement (NAFTA) of the General Agreement of Trade in Services (GATS) Persons coming to Canada under the Software Development Worker Pilot Project The task of a good immigration lawyer is to attempt to find the appropriate exemption for the foreign worker, so the job validation aspect of the process can be avoided, given the high rate of failure encountered at that stage. A lawyer should analyze and determine what exemption, if any, can be used for the foreign worker in order to maximize his chances of coming to Canada and avoid costly advertisement and interview requirements. Also, competent counsel will assist both employer and the foreign worker through the process of validation, if no exempt category can be found to match the particulars of the occupation offered to the foreign worker. Given the extreme complexity of these issues it is important that every person who intends to make any application contact a lawyer (Barrister & Solicitor), before confronting any kind of legal procedure, to obtain the appropriate advice. People must be alert and avoid seeking advise from individuals who are not lawyers and do not possess the necessary legal knowledge or appropriate supervision, and may take undue advantage of those who are not familiar with the Canadian legal system. Recently, a decision from the British Columbia Supreme Court granted the Law Society of that Province a permanent injunction against a "consultant", on the basis that he was in essence practising law without being a member of the Bar. The court decided that, in order to give legal advise to clients for a fee, a person must be a lawyer and member of the Provincial Bar. The public is advised to exercise the utmost caution in order not to jeopardize their situation, and deal only with lawyers who are members of the Bar.